The Practice of Law

Why Can’t You Make My Open-Heart Surgery Shorter?

At my first firm, Eric was a client lawyer. He was not much for reading legal documents, but he knew how he wanted them to look, and that was short.

One day, Eric gave Howard, a junior real estate associate, instructions to draft a sophisticated purchase agreement for commercial real estate. He told Howard that it had to be no longer than two pages.

Howard was a bright young lawyer. He knew which clauses were important to include. And he knew that a proper, professional document would be longer than two pages. In fact, Howard’s first draft was six pages long, but he whittled it down to four pages before giving it to Eric.

Eric said something like: “Read my lips. I said two pages.”

So, Howard went back and eliminated some valuable but dispensable clauses and gave the revised document to Eric. Now it was three pages long, and every single word was crucial.

Eric was upset. He handed the job to Harry, who was the super-star in the office. In fact, Harry was one of the best commercial real estate lawyers who I ever met. Harry worked on the draft and gave it to Eric. Exactly two pages long. Eric was pleased. He asked Howard why he could not be more like Harry.

Let me interrupt my story at this point to mention that these events took place just as word processing was coming into fashion. Yes, I am that old. And yes, it was possible to practice law before computers. But I digress.

Howard went to Harry and said: “How did you shorten it to two pages. What could you have possibly left out? Harry explained that the document was perfect, but Harry had changed the font and decreased the margins. Like I said, one of the best commercial real estate lawyers that I ever met.

Although this story may not seem remarkable today, back in the day it demonstrated creativity, if not brilliance.

So, what exactly is the fixation that clients have with short documents?

You would think that clients would want their documents to be long enough to contain everything that is necessary to protect them. But no, they want them short. For some unfathomable reason, the people who did not go to law school frequently have strong ideas about how the people who did go to law school should practice law.

Which got me thinking. I know that I have absolutely no opinion about how my surgeon should conduct my surgery. I sort of think that since he, she or they went to medical school and I didn’t, I should probably just leave him, her or them alone to slice and dice me as he, she or they think best.  So why is it that clients often want a short document even when their lawyer thinks that a longer document is called for?

Now, I am the first to acknowledge that sometimes a short document is better than a long document. For example, perhaps in some situations the choice will be between getting a short document signed or getting no document signed. Or maybe a short document will be dealt with by the business people but a long document is destined to be held up in the legal department for months.  Or maybe there is sometimes even an argument that burying an important provision in a long document when dealing with a consumer may adversely affect the enforceability of the document. But I don’t think that these are the principal reasons that clients prefer short documents. No, it all comes down to two important points:

  1. Clients think shorter is cheaper; and
  2. Clients do not trust us.

Now, good lawyers know that shorter is not necessarily cheaper. ‘Standard’ is cheaper. ‘Custom’ costs more. Often, cutting back a standard document to make it shorter is a custom job which costs more.

But let’s get to the really important point.  Back to my medical example. When the surgeon says that the operation takes four hours, I am not inclined to tell him, her, or them that I want a shorter operation. I trust him, her, or them to know how long it should take, and frankly, I would like him, her, or them to take as long as he, she or they think is required to do a slam, bang job, by which I mean a fantastic job. Because I trust him, her, or them. Because I don’t think that they are too stupid to do it in an hour or that they have some ulterior motive for wanting to stretch the operation out.

But when a lawyer tells a client that to cover all their issues properly, the agreement should be thirty-five pages long, they often ask why it cannot be shorter. They don’t trust us.

My wife says that I often write about problems in the legal industry without offering solutions, which is apparently a bad thing. With this article, she is right again. I could write about the solution. But my readers wanted a short article. See my point?

2 replies on “Why Can’t You Make My Open-Heart Surgery Shorter?”

It is definitely true that it takes longer to write a short document. In fact, I think Mark Twain made a point of it (“I didn’t have time to write a short letter so I wrote a long one instead”).

The main constraint, I think, is the time needed to read professional advice. And the client’s time is always more important than yours.

If I commission legal advice, I want to be able to get it into my brain as quickly as possible while still understanding it. I never fully understood that until I went client-side recently and had to instruct some lawyers for my parents and also for a personal matter. I found myself getting annoyed at long emails, quite irrationally.

Of course, my partner has known this for much longer, through the voluntary work she does which requires her to liaise constantly with lots of “customers” of her charity. She will send out very long and detailed emails, which invariably no one reads, so she gets about 50 responses asking about things already covered in the original email. People are very busy so cannot be bothered to spend 5 mins reading a long email properly and instead spend 20 seconds skimming it and another 20 seconds emailing back a list of questions. These are generally speaking highly educated people who simply value their personal time more than my partner’s.

She is very kind and she responds to every single email in detail (rather than simply ignoring them or referring back to the original detailed email as perhaps a lawyer providing vendor due diligence in a proposed merger and acquisition might do).

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